Dalton Yap v Union Bank of Jamaica Ltd
| Jurisdiction | Jamaica |
| Judge | DOWNER, J.A. , WALKER. J.A., , SMITH, J.A. (Ag.) , DOWNER, J. A. |
| Judgment Date | 31 January 2002 |
| Judgment citation (vLex) | [2001] 11 JJC 2201 |
| Court | Court of Appeal (Jamaica) |
| Date | 31 January 2002 |
DAMAGES - Breach of contract of employment - Mareva injunction obtained - Whether Mareva injunction properly applied for - Order for assessment of damages - Whether exemplary damages may be pleaded
ORDER
Order of 10 th October 2001 recalled and struck out as null and void.
No order as to Costs.
On October 10, 2001 there were two motions before this Court. Mr. Goffe, QC, for the Bank raised a preliminary point which stated that this Court had no competence to hear the listed appeal by Yap. Ms. Phillips QC., for Yap, sought to enlarge time, and also sought leave to appeal, to confirm the status of the listed appeal. At the conclusion of the hearing the following order was made.
(1) Preliminary objection dismissed
(2) Leave to enlarge time granted
(3) Leave to appeal granted
(4) Registrar directed to treat 'Notice and grounds of Appeal' filed on 8 th June 1998 as filed 10 th October, 2001
(5) Costs of the day to be taxed or agreed are to go to the Bank
(6) Reasons to be put in writing
The submissions and the order of this Court assumed we were dealing with an interlocutory appeal. The issue was never raised as to whether we were dealing with a final order on appeal.
Why all concerned assumed the proceeding before Karl Harrison J was interlocutory for the purpose of an appeal
The applicant Yap invoked the jurisdiction of the Supreme Court to enforce the undertaking for damages pursuant to a summons of which the material part reads:
"1. There be an inquiry whether the Plaintiff has sustained damages by reason of the Mareva Injunction dated October 8, 1993 which the Defendant ought to pay according to their undertaking as to damages contained in the said order."
It is pertinent to refer to the relevant order of the Supreme Court. It reads at page 50 of the Supplementary Record:
"In Chambers
Before the Honourable Mr. Justice Harrison February 23 rd & 27 th April 1998
UPON THE SUMMONS TO PROCEED TO INQUIRY AND ASSESSMENT OF DAMAGES coming on this day and upon hearing Mr. Christopher H. Dunkley, Attorney-at-Law instructed by Messrs, Wright Dunkley 8t Co, Attorneys-at-Law for and on behalf of the Defendant and Mr. Patrick McDonald, Attorney-at-Law instructed by Myers, Fletcher & Gordon, Attorneys-at-Law for the Plaintiff IT IS HEREBY ORDERED THAT:-
1. The Summons be dismissed with costs to the Plaintiff to be taxed if not agreed.
2. Application for leave to appeal refused." (Emphasis supplied)
It will be demonstrated that the learned Judge below and the Registrar who is presumed to have acted on his instructions, had no jurisdiction to incorporate paragraph 2 in the order as it was final and no leave to appeal was required. To preclude a prolonged debate in the Court below an order which reads "Leave to appeal granted if necessary" is an appropriate judicial stance, and Lord Merriman P. adverted to it in The Pacific Concord [1961] 1 All E.R. 106 at 115. For ease of reference it should be noted that the appeal from the above order of Harrison J. was disposed of when the reasons for judgment and the directions for conducting the assessment were delivered on November 22, 2001. Moreover, this decision to direct an enquiry and give directions thereto entailed a decision to enforce the undertaking. See paragraph 25 of Mayor & Burgesses of London Borough of Southwark v. Neil Antony Storrie [1996] Court of Appeal Transcript of 3rd December 1996. Also worthy of note is that in the Council's points of defence in paragraph 8 of this judgment is a denial of liability stated thus:
"The Plaintiffs deny that this is a case where the Plaintiffs will be liable for the payment of any damages whether general... exemplary or aggravated damages."
Exemplary or aggravated damages will always be a live issue in equity in circumstances where an undertaking is in issue as so much depends on conduct. See Smith v Day (1882) 21 Ch.D 421 per Esher, L.J. 427–428. The pertinent evidence in the context of the motions is the affidavit of Mr. Christopher Dunkley, the junior counsel. Here are the relevant paragraphs of his affidavit:
"2. That this matter commenced in 1993 with the Plaintiffs obtaining a Mareva Injunction against the Defendant. Thereafter there have been several Interlocutory Applications, a substantive trial and five (5) other Appeals, to include that to Her Majesty in Council
3. That in preparation of this Appeal I was guided by the Judgment of his Lordship Mr. Justice Harrison given on April 27 th 1998 which did not reflect any application or refusal by His Lordships of Leave to Appeal.
4. That the order of Mr. Justice Harrison as filed on the 17 th day of November 2000 did not contain the refusal of Leave to Appeal. The amendment was inserted by the Registrar thereafter and prior to our collection of the Perfected Order." (Emphasis supplied)
The trial on the merits of the case was before Panton J. (as he then was).
Mr. Christopher Dunkley continued thus:
"5. That this matter proceeded to settling of the Record, the fixing of a date and consented inclusion of further documents between the parties in preparation for the hearing of the Appeal before this Honourable Court of Appeal
6. That owing to the multiplicity of applications and hearings between the parties to this Appeal, the application for Leave to Appeal was inadvertently over-looked and was not in fact sought nor applied for prior to its absence being brought to this Counsel's attention on Monday October 8 th , 2001.
7. That this omission appears to have been overlooked by all the parties concerned being the Appellant's and the Respondent's Attorneys-at-Law and the Registry of this Honourable Court of Appeal
8. That in all the circumstances, the parties to this Appeal being ready and prepared to proceed with this Appeal and there being no prejudice to the Respondent by virtue of this application, I humbly pray that this Honourable Court of Appeal will grant its Orders to enlarge time and Leave to Appeal to the Appellant." (Emphasis supplied)
It is now appropriate to refer to the two motions which were heard together before this Court on 10 th October, 2001. That for the Bank reads as follows:
" TAKE NOTICE that the Respondent herein named intends, at the hearing of this appeal, to rely upon the following preliminary objection, notice whereof is hereby given to you viz:-
That there is no appeal properly before the Court of Appeal
AND TAKE NOTICE that the ground of the said objection is as follows:
That leave to appeal was required and was not obtained, hence the Notice of Appeal herein is void, valueless and of no effect, and incapable of being saved, and should be struck out with costs to the Respondent."
On the other hand the Amended Notice of Motion at page 1 of the Record for the applicant Yap reads:
" TAKE NOTICE that the Court of Appeal will be moved on Wed. the 10 th day of Oct, 2001 or as soon thereafter as Counsel may be heard for the hearing of an application on the part of the Defendant/Appellant for an Order that:
1. The time within which to seek Leave to Appeal be enlarged to the date hereof;
2. Leave to appeal be granted;
3. Leave to lodge Notice and Grounds of Appeal out of time;
AND FURTHER TAKE NOTICE that at the hearing of this Application the Defendant/Appellant will rely on the Affidavit of CHRISTOPHER DUNKLEY."
Why this Court had no jurisdiction to hear and determine the above motions
The clue to understanding why there was a lack of jurisdiction may be observed by referring once again to the summons to enforce the undertaking before Karl Harrison J. in the Court below. It reads in part:
"1. There be an inquiry whether the Plaintiff has sustained damages by reason of the Mareva Injunction dated October 8, 1993 which the Defendant ought to pay according to their undertaking as to damages contained in the said order."
Karl Harrison J, as a matter of law in exercising his discretion decided that there was to be no assessment in favour of Yap. The issue between the parties namely the enforcement of the undertaking for damages was at that time finally determined. Consequently, it was a final order and the redress available was to appeal. The appeal was therefore governed by sec. 10 of the Judicature (Appellate Jurisdiction) Act, which reads:
"10. Subject to the provisions of this Act and to rules of court, the Court shall have jurisdiction to hear and determine appeals from any judgment or order of the Supreme Court in all civil proceedings, and for all purposes of and incidental to the hearing and determination of any appeal, and the amendment, execution and enforcement of any judgment or order made thereon, the Court shall subject as aforesaid have all the power, authority and jurisdiction of the former Supreme Court prior to the commencement of the Federal Supreme Court Regulations, 1958."
On the other hand section 11(1)(f) of the Judicature (Appellate Jurisdiction) Act governs interlocutory appeals. It reads:
"11.-(1) No appeal shall lie -
(f) without the leave of the Judge or of the Court of Appeal from any interlocutory judgment or any interlocutory order given or made by a Judge except-
(i)..."
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